Ajm18 v Federal Circuit and Family Court of Australia
[2023] FCA 1625
•18 December 2023
FEDERAL COURT OF AUSTRALIA
AJM18 v Federal Circuit and Family Court of Australia [2023] FCA 1625
Appeal from: AJM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 756 File number(s): VID 713 of 2023 Judgment of: O'BRYAN J Date of judgment: 18 December 2023 Catchwords: MIGRATION – application for judicial review of decision of Federal Circuit and Family Court of Australia (Div 2) under s 39B of the Judiciary Act 1903 (Cth) – where Federal Circuit Court refused applicant’s application for extension of time to file an application for review of decision of Administrative Appeals Tribunal – application dismissed Legislation: Judiciary Act 1903 (Cth, s 39B
Migration Act 1958 (Cth), ss 36(2)(aa), 424A(3)(a), 441A(5), 441G, 477
Cases cited: AJM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 756
Craig v State of South Australia (1995) 184 CLR 163
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Nguyen v Refugee Review Tribunal (1997) 74 FCR 311
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
WACA v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 463
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 24 Date of hearing: 18 December 2023 Counsel for the Applicant: The Applicant was not legally represented Counsel for the Second Respondent: N C Dour Solicitor for the Second Respondent: Mills Oakley ORDERS
VID 713 of 2023 BETWEEN: AJM18
Applicant
AND: FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Second Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the costs of the Second Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
The applicant seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Federal Circuit and Family Court of Australia (Div 2) (Federal Circuit Court) dismissing her application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act): AJM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 756 (J). The application before the Federal Circuit Court related to a decision of the Administrative Appeals Tribunal (Tribunal) which affirmed a decision of a delegate of the second respondent (the Minister) to refuse to grant the applicant a protection visa.
The applicant is not legally represented and, understandably, there are defects in her originating application. For example, the relief sought by the applicant is not stated. I infer, though, that the applicant seeks an order in the nature of certiorari setting aside the decision in the Federal Circuit Court and an order in the nature of mandamus requiring the decision to be made again in accordance with law.
Making all due allowance for the fact that the applicant is not legally represented, and having reviewed all of the papers that have been filed on this application, in my view the application is utterly without merit and must be dismissed. My reasons can be stated relatively briefly.
The applicant is a citizen of China. She arrived in Australia on 13 September 2007 as a holder of a Sponsored Family (Subclass 679) visitor visa. On 28 September 2007, the applicant lodged her first protection visa application, which was refused on 25 November 2008. On 15 December 2008, the applicant applied to the Refugee Review Tribunal for review of that decision. On 12 March 2009, the Refugee Review Tribunal affirmed the decision under review.
As set out in the reasons of the Federal Circuit Court, following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 , the applicant was permitted to submit a further protection visa application whilst on shore. Consistent with that decision, any further application was to be assessed against extant criteria only. In this case, where the complementary protection criterion was introduced following the refusal of the first protection visa, the new application was required to be assessed under s 36(2)(aa) of the Act (J [10]). The second protection visa application was lodged on 20 March 2014. The Federal Circuit Court summarised the applicant’s claim for protection as follows (at J [12]):
The application was accompanied by a personal statement made by the applicant in which she claimed to fear harm as a result of practising Christianity as a member of the Local Church in China .... The applicant claimed to have been by arrested by police in Fuqing on two occasions; on 27 August 2000 and on 24 February 2006. She also claimed that in January 2012, her home in China had been demolished by the Chinese government and she had not received “reasonable compensation”. The applicant explained that during the demolition process, a bible which she had hid behind the fridge was found. The applicant’s sister, who the applicant had authorised to deal with the compensation issue, had been forcibly dragged out of the home by an officer of the demolition office. When the police attended, they identified the applicant’s house as an “illegal gathering place” and said that if the applicant was sent back to China, they would send her to a detention centre. The applicant apprehended that if she returned to China, the police would torture her and send her to jail and she would be forced to give up her faith.
On 26 June 2015, the delegate refused the second protection visa application. On 24 July 2015, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared twice before the Tribunal with the assistance of a Mandarin interpreter. On 21 November 2016, the Tribunal affirmed the decision not to grant the visa.
On 25 January 2018, the applicant lodged an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The application was filed 396 days after the time specified in s 477(1) of the Act (being within 35 days of the date of the Tribunal’s decision) (J [2]) and therefore required an extension of time. The reason given for the delay was that the applicant was unable to “obtain legal advice in preparation of the appeal” due to financial difficulties.
The primary judge concluded that the applicant’s explanation for what is a significant delay was neither reasonable nor sufficient (J [37]). That conclusion was inevitable and is not challenged on this application. The primary judge also considered the two grounds for judicial review raised by the applicant and concluded that neither had any merit. The first ground of review was to the effect that the Tribunal ought to have made different factual findings about the ability of the applicant to obtain a Chinese passport. The primary judge rejected this ground for the reason that, amongst other things, the Tribunal was entitled to assess the applicant’s claims having regard to the country information available before it and to find that the applicant’s claims lacked credibility (J [46]). The second ground of review was to the effect that the Tribunal ought to have believed the applicant’s claims about the local underground church being banned in China (J [49]). The primary judge rejected this ground on the basis that the Tribunal’s decision did not turn on its findings about the level of religious repression in China but on its findings that the applicant was not a follower and member of the local church (J [53]). On the basis of the above findings, the primary judge was not persuaded that it was necessary in the interests of the administration of justice to make an order extending the time period (J [54]). On 23 August 2023, the primary judge dismissed the application for an extension of time.
By s 476A(3)(a) of the Act, an appeal may not be brought to this Court from a decision of the Federal Circuit Court refusing an extension of time under s 477(2). To overcome that jurisdictional limitation, on 6 September 2023 the applicant filed an application seeking judicial review of the decision of the primary judge under s 39B of the Judiciary Act 1903 (Cth).
The Minister did not contend that the Court lacks jurisdiction to hear the application by virtue of s 476A of the Act and I have proceeded on the basis that the Court has jurisdiction. Nevertheless, it must be borne in mind that the scope of judicial review of a decision of an inferior court differs from, and is narrower than, judicial review of an administrative decision maker: see Craig v State of South Australia (1995) 184 CLR 163 (Craig) and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk). As explained by the High Court in Craig (at 179-180):
… If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances. to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
In Kirk, the majority summarised the principles stated in Craig in the following manner (at [72]):
First, the Court stated [(at 177)], as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist” (emphasis added). Secondly, the Court pointed out [(at 177)] that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” (emphasis added). (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified [(at 177‑178)] what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said [(at 178)] of this last example that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” and gave as examples of such difficulties R v Dunphy; Ex parte Maynes [(1978) 139 CLR 482], R v Gray; Ex parte Marsh [(1985) 157 CLR 351 at 371] and Public Service Association (SA) v Federated Clerks’ Union [(1991) 173 CLR 132].
The originating application states two grounds for relief as follows:
1. The primary judge erred in making an order that the Tribunal made no jurisdictional error.
2. The primary judge failed to consider that the Tribunal failed to discharge its duty under s441A(5) of the Migration Act by transmitting documents in connection to review application to a person namely Mengmeng Fu for me. In this regard, I did not provide express written authorisation for the Tribunal to communicate with Mengmeng Fu authorised by me to receive documents in connection with the review, pursuant to s 441G(1) of the Act.
The first ground is misconceived because the primary judge did not make an order to the effect that the Tribunal made no jurisdictional error. The primary judge found that there was insufficient merit in the proposed grounds of review to grant an extension of time.
The second ground is untenable. The applicant did not advance any submission before the primary judge to the effect that she did not give express written authorisation for the Tribunal to communicate with Ms Fu to receive documents in connection with the review. Accordingly, there can be no error in the primary judge failing to consider that contention.
The foregoing is sufficient to dismiss the application. Although it is unnecessary, I will also briefly address the contentions advanced by the applicant in her written submissions.
The applicant’s submissions first addressed the contention that the applicant did not provide express written authorisation for the Tribunal to communicate with Mengmeng Fu in connection with the review, pursuant to s 441G(1) of the Act. The applicant’s submissions may be summarised as follows:
(a)The application for review was filed with the Tribunal on 24 July 2015.
(b)The applicant acknowledged that, on the application, correspondence was requested to be address to the authorised recipient, Ms Mengmeng Fu and the application provided the email address [email protected] for that purpose. Despite that, the applicant submitted that Ms Fu was not nominated as a representative for the applicant and that there was no express written authorisation for the Tribunal to communicate with Ms Fu to receive documents in connection with the review by email.
(c)On 21 November 2016, the Tribunal sent Ms Fu a copy of its decision in respect of the review by email to the nominated email address [email protected]. The decision was addressed to the applicant and was in the English language.
(d)The applicant submitted that, as she did not have an email address at that point in time and Ms Fu was only an authorised recipient rather than a representative, the applicant could only be notified of the outcome of the Tribunal decision verbally and not by having the documents sent to Ms Fu.
The applicant’s submissions are contradicted by the application for review that was filed with the Tribunal. The application contains a heading “Correspondence details”. In that section, under a sub-heading “Correspondence type”, the applicant has filled in the words “To an authorised recipient”. The applicant has then filled out the name of Ms Fu, her post office box address and the above email address. It should also be noted that, on the application, the applicant filled in her own personal address details with the same email address (that is, the nominated email address was included on the form in respect of both the applicant and the “authorised recipient”, Ms Fu.
Section 441G(1)(a) provides that if a person (the applicant) applies for review of a Part 7-reviewable decision and gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review, the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Further, s 441A(5) permits the Tribunal to give a document to a person by way of email to an email address provided by the person to the Tribunal in connection with the review. In my view, the application form filed by the applicant in the Tribunal constituted written notice that Ms Fu was authorised by the applicant to receive documents in connection with the review and also constituted written notice of the nominated email address. The Tribunal emailed its decision to Ms Fu using the nominated email address. In doing so, the Tribunal complied with s 441G of the Act. The Tribunal was not required to notify the applicant “verbally” of its decision.
In so far as the applicant submitted that she does not speak English and the decision record was in English and not translated into Mandarin, those facts do not establish any error in the primary judge’s decision. As the Minister submitted, the Tribunal is not required to provide its decision in a language other than Australia’s official language of English (see Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 and WACA v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 463).
The applicant also submitted that she was denied procedural fairness in the Tribunal. The applicant submitted that:
(a)On 19 September 2016, the Tribunal emailed an “Invitation to Attend a Hearing” notification to Ms Fu but failed to attach Information Sheet MR18 (Information about hearings) and Form MR19 (Response to hearing invitation). The applicant submitted that Ms Fu was not a representative and had no obligation to ask the Tribunal to provide those documents. The applicant submits that she was denied procedural fairness by reason of not receiving those documents.
(b)On 18 October 2016, the Tribunal emailed a “Resumption of Adjourned Hearing” notification to Ms Fu but failed to provide Form MR21 (Response to resumption of adjourned hearing notice), thereby denying the applicant procedural fairness.
Again, these were not matters raised before the primary judge. They are therefore incapable of establishing jurisdictional error on the part of the Federal Circuit Court. Furthermore, for the reasons already given, the Tribunal was entitled to give those notifications to Ms Fu as an authorised representative and there was no procedural unfairness in circumstances where the applicant attended both hearings of the Tribunal.
Next, the applicant submitted that:
(a)The Tribunal failed to disclose the country information on which it relied for its findings, and to invite the applicant’s comment on that information, thereby denying the applicant procedural fairness.
(b)The Tribunal erred in its findings of whether the applicant is a Christian based on her knowledge of Christianity.
(c)The Tribunal failed to consider that the Chinese government is an autocratic country and misapplied the relevant country information.
Those matters were raised before, and considered by, the primary judge. There is no jurisdictional error in the primary judge’s assessment of those matters. As the primary judge correctly stated, by virtue of s 424A(3)(a), the Tribunal is not obliged to notify the applicant of country information and invite the applicant’s comments (J [47]). The other asserted grounds seek, impermissibly, to review the merits of the Tribunal’s decision.
For the foregoing reasons, the applicant has not established that the decision of the Federal Circuit Court, refusing an extension of time, is affected by jurisdictional error. The application will be dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate:
Dated: 18 December 2023
0
9
2